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Robolawyer to Handle Clickwraps?
adelord writes "Recently Wired published an essay by Mark D. Rasch describing the need for a 'browser-based automaton that could be adjusted to match your tolerance for legal mumbo jumbo' to help the user navigate the torrent of user agreements most of us click through without reading. Is this a job for Google Labs, and if not, who else would write the software for it? Do you think it is a good idea? While the legal exposure from writing software that partially fills the role of a lawyer could be enormous, I sure that it would have an ironclad user agreement that I would simply click through in my excitement to use it."
Infospace aquired Millet software in 2000, Millet software had a product called "Privacy Bank" Which did exactly what this article is describing. The only hard part is that it doesn't scale well, because there isn't a text parser on earth good enough to unwrap the intent of the legalese in most EULAs. So either you have to employ an army of well trained EULA readers or get individual sites to submit to a cleanroom EULA with Infospace's language so that the software can know exactly what is allowed/disallowed.
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Knuth wrote a little paper about this (why not? he's written about everything else already...), and what he noticed was that, since legal papers are "gold standards" for precedent and such, you can't, for political reasons, go back and change anachronisms and grammatical mistakes. Instead, ad-hoc rules are invented and codified to decide ambiguities. He gave a good real-life example of how ridiculous these can be. I forget the details, but it was something like "if the first part of a sentence ambiguously refers to more than one clause and it is not obvious from the preceding two lines which clause is the correct one, then it is assumed to refer to the clause whose first word occurs before the first word of the other clauses."
:)
I think that it's deliberate obfuscation, but a very specific kind: erring toward being well-defined rather than making any intuitive sense or external logic. It's not unlike unix, in that way.
a contract is based on language, not intent. Any sort of summary would not be sufficient legal protect against exploiting vunerabilities in the language which create loopholes in favor of either agreeing party.
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Lawyers drawing up contracts tend to go out of their way to make things as precise as possible. Lawyers hate leaving unintended loopholes, so they bend over backwards to try and make sure they don't happen. This is why there's usually so much redundance in legal filings.
However, in the process of making things as precise as possible, they often make things very difficult to understand, and ironically the stuff they put in to make things very precise may end up not being interpreted as intended, because it's so hard for a third party to understand.
Of course, when a contract stretches into a hundred pages of overly precise legalese, even the lawyer who wrote it might glaze over a little bit while re-reading it, and miss all of the unintentionally misleading or confusing pieces.
There is a movement in the legal profession these days to make things more readable, but try as they might, lawyers still usually get caught up in the overwhelming need for absolute precision, and things end up being unreadable by the average person.
There's also the fact that every time you try to dumb something down to more common language, you risk losing a lot of the nuance of the original language, and can often produce a document that is interpreted very differently than the original, even though the words might technically have the same meanings.
Lawyers often adhere to specific language because that specific language has been adjudicated to have a specific and desired meaning in a case. So if you stick to that language, you're reasonably assured of the desired interpretation.
:)
However, if you deviate from that language, sometimes a judge might construe it differently that you wish, which could be bad. When you're working for a client, the important thing is getting the desired meaning and result, not the clarity of the documents in question...
To make a bizarre metaphor, if I hand a screaming monkey a rubber stamp with my name on it, I am not bound by any contracts the screaming rubber-stamp-wielding monkey accidentally stamps.
This is wrong. Under contract law we look at whether there is mutual assent objectively; that is, would a reasonable person believe there is mutual assent to the contract? If the other party receives the rubber-stamped contract and reasonably thinks that the monkey-owner agreed to the contract, then the monkey-owner is bound by the contract (assuming all other elements are satisfied). It's not fair to the other party to bear the risk that assent was not given when a reasonable person would have thought the deal was done.
Your "agree to disagree" program for click-wrap licenses isn't really different (in some ways, it's worse, because by using it it seems like you're really trying to get the benefit but avoid the obligations).
To add to the parent, if you delegate the authority to click "yes" to the monkey, the principles of agency will attribute all of the monkeys actions that you either (1) directly authorized or (2) third parties reasonably believes you authorized based on your representations (like holding the monkey out as your acceptance agent) to you as the principal. Bottom line, if you delegate authority to accept agreements to your agent, you will be bound to those agreements as if you had signed them yourself.